Management Personnel Services, Inc. v. Sandefur

SMITH, Judge. In this case we are presented with the question of whether a trial judge correctly determined that appellee Jennifer D. Sandefur had just cause within the meaning of Maryland Code (1957, 1979 Repl.Vol.) Art. 56, § 166(d) and (e) to terminate employment which she, procured through a licensed employment agency. We shall hold that the judge erred. Hence, she is liable to appellant Management Per ³³⁵ sonnel Services, Inc. (the employment agency or the agency) over and above the judgment entered.

The employment agency is a fee charging employment agency covered under Art. 56, §§ 161-170. In June 1982 Sandefur sought its assistance in procuring employment. She signed the agency’s standard contract form by the terms of which she agreed to pay 15% of her first year’s salary if this were $15,000.00 or less. The reverse side of the agreement under “marketing areas” specifies, “Retail.” At another point “Wants to Mdse.” is written.

Section 7 of the contract agreement provided: “Employment shall be considered to be temporary when within 90 days after employment commences the employment is terminated through ‘no fault’ of the applicant, or the employment is voluntarily terminated by the applicant with ‘just cause’. A temporary placement fee may be charged to any such applicant for such temporary employment. Such fee not to exceed twenty (20) percent of the total compensation received or seventy-five (75) percent of the permanent placement fee for the same position, whichever is the lesser.” Section 7 of the contract is in accord with Art. 56, § 166(d) and (e). Those subsections state: “(d) Employment shall be considered to be temporary when within 90 days after employment commences the employment is terminated through ‘no fault’ of the applicant, or the employment is voluntarily terminated by the applicant with ‘just cause.’ A temporary placement fee may be charged to any such applicant for such temporary employment, such fee not to exceed twenty (20) percent of the total compensation received or seventy-five (75) percent of the permanent placement fee for the same position, whichever is the lesser. “(e) In the event the employee is discharged ‘for cause’ or voluntarily leaves employment without ‘just cause’ within 90 days after employment commences, a fee not to ³³⁶ exceed 75% of the permanent placement fee may be charged to any such applicant.” Sandefur was under no obligation under the contract to accept any employment to which she might be referred.

She was referred to and accepted a position with The Gap Stores, Inc. According to the placement confirmation and the acceptance verification, both of which she signed, the position was “Mgt. Train.” Each specified a salary of $11,000. The placement confirmation indicated that the service charge would be $1,650.00. On June 18 she executed a note to the agency in the amount of $1,650.00 to be paid “$50.00 18 June 1982 with four equal payments of $400.00 starting 1 July 1982 continuing monthly until paid in full.” Sandefur quit this job after working for The Gap about two months.

She paid the agency only $450.00 on the note. On November 3, 1982, the employment agency sued Sandefur in the District Court in Prince George’s County for the remaining $1,200.00 on the note plus interest and attorney’s fees. On direct examination at trial Sandefur indicated that she terminated her employment “based on just cause.” She said: “I was unhappy with my position there. I was ... being a college graduate, I just didn’t want to be a glorified sales person.

I was hoping to advance in the company and at management level.” The record on direct examination further reflects: “Q. You were in training, correct, you did not get the job as assistant manager? “A. I quit before then though. I was given the opportunity.” The record on cross-examination states in part: ³³⁷ “Q. Ms. Sandefut[ 1 ], you said you were almost—you quit before you became a full-fledged assistant manager, do you know how close you were to becoming an assistant manager? “A. No, I wasn’t. It was some months off though. “Q. When ah— “A. I think you had to be employed there six months before you moved in. “Q. Did you interview with Mr.—Mr. Jack Ginner— before accepting this job at The Gap? “A. Twice. “Q. Okay. And during that time, did he explain to you what your duties and responsibilities would be? “A. Yes, he did. “Q. Did he explain to you that you were going to become a part of a program called the “Assistant Management Training Program”? “A. Yes, he did. “Q. Did you understand? “A. Yes, I did.

It was also my understanding that I would have the opportunity to advance, but ah—that I would have—yes, he did explain the program to me.” The trial judge found for the employment agency but only in the amount of $30.00. He said in pertinent part: “Well, gentlemen, I think we’re right down to the issue here of paragraph seven in the agreement which comes out of the statute. 'The (unclear)[ 2 ] shall be considered to be temporary when within 90 days after employment commences, the employment is terminated through no fault of the applicant, or the employment is voluntarily terminated by the applicant with just cause.’ ³³⁸ “Now, I suspect in this case the Legislature definitely-intended to leave that word ambiguous. That one has got to keep in mind that this legislation was remedial. Really, it was designed—employment agencies certainly have a place in our society where they provide a service—certainly on hard to get jobs or jobs that are sought after, that are good jobs for employees, and deal with permanent employment. “I think the Legislature fully intended that that just cause be almost any cause that had any rational suggestive meaning to the employee, and they also, well intentionally, provided that the employment agency would not work for nothing on that.

They just said the person wasn’t going to get (unclear) rate. “Accordingly, I find that the Plaintiff paid $450.00. I determine that based on her [subjective] test she left with just cause voluntarily in accordance with the statute, and she therefore owes them $30.00. “Judgment will be in the amount of $30.00 plus court costs of $10.00 in favor of the Plaintiff against the Defendant.” The employment agency appealed to the circuit court. The judge who considered the matter referred to our holding in Ryan v. Thurston, 276 Md. 390 , 347 A.2d 834 (1975), pertaining to appeals from the District Court, and Maryland Rule 1386 to the effect that “the judgment of the lower court will not be set aside on the evidence- unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” In finding for Sandefur he said in pertinent part: “Judge Fisher said enough in the record to indicate that he recognized the issue in this case, and that is Article 56, Section 166(d) and (e), and that the issue was whether or not she had just cause to leave her employment, and he used a liberal test, a subjective test, since he concluded the legislation was, in effect, remedial, and concluded that ³³⁹ there was just cause, because in his judgment the job wasn’t what she thought it was or was represented to be. It didn’t say anything about misrepresentation, but I think that after a couple of months an employee would be in a pretty good position to know whether or not she was going to be a sales girl from then on or have some other responsibilities, and he chose to accept that factually in her judgment, it represented a sales girl, period. “So, I can’t say he was clearly erroneous.

He did allow the $30.00 placement fee that is permitted under the statute and gave judgment for that amount, as the record shows, and I believe, had I been sitting in his shoes, I would have done the same thing.” We granted the employment agency’s petition for a writ of